EXTRA JUDICIAL EXECUTION VICTIM FAMILIES v. UNION OF INDIA & Anr.

3.1. (i) The Armed Forces (Special Powers) Act, 1958 The Armed Forces (Special Powers) Act, 1958 (AFSPA) was originally enacted as the Armed Forces (Assam and Manipnr) Special Powers Act, 1958. It was initially extended to the State of Assam and the Union Territory of Manipur. Since then the entire B Union Territory of Manipur (and subsequently the entire State of Manipur) has been declared a disturbed area in terms of Section 3 of t,he AFSPA. In other words, Manipur bas been a disturbed area for about sixty years. The postulates for a declaration under Section 3 of the AFSPA are that a public order situation exists and that the assistance of the armed forces of the Union is required in aid of the civil power. In snch a situation, the AFSPA enables the armed forces of the Union to exercise vast powers. One of the vast powers exercisable by the armed forces of the Union in a disturbed area is in terms of Section 4(a) of the AFSPA. The power so exercisable includes the use of force even to the extent of causing the death of"any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances". Clearly, the power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances that is: (i) after giving such due warning as the authorized officer may consider necessary; (ii) the alleged offender is acting in contravention of any law or order in force in the disturbed area which (a) prohibits the assembly of five or F more persons or (b) prohibits the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances. [Paras 93 to 96] (953-G-H; 954-A, C-E; 955-A-BJ E 0 (ii) Code of Criminal Procedure, 1973 Section 4 and 5 of the Cr.P.C. concern with investigation, enquiry, trial and other proceedings in relation to offences under the Indian Penal Code, 1860 and other laws. However, this does not preclude any enactment regulating the manner or place of investigating, inquiring into, trying or othenvise dealing with such offences. Further, the applicability of any other special or local law or any special jurisdiction or power conferred or any special G H EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA procedure provided by any other law for the time being in force shall not be affected by the Cr. P.C. For example, there are special requirements for dealing with juveniles in conflict with law and therefore that special law would be applicable to those juveniles to the extent it provides for the investigation, enquiry or procedure different from the Cr.P.C. In other words, unless a statute specifically provides for it, the investigation, enquiry, trial and other proceedings in respect of offences under the IPC and other laws shall be carried out in accordance with the provisions of the Cr.P.C. [Para 98) [955-E; 956-A-D] (iii) The Unlawful Activities (Prevention) Act, 1967 The Unlawful Activities (Prevention) Act, 1967 (UAPA) is concerned, inter alia, with cession and secession of a part of the territory of India and terrorist activities. In terms of Section 15 of the UAPA, a terrorist act is one that threatens or is likely to threaten, amongst others, the unity, integrity, security or sovereignty of India or intends to strike terror or is likely to strike terror in the people or any section of the people by any one of the activities mentioned in the section such as using bombs or firearms or other lethal weapons that cause or are likely to cause death or injury. ·[Paras 99, 101) [956-E; 957-B) (iv) The Army Act, 1950 A person subject to the Army Act, 1950 (Army Act) is said to be in active service if that person is, inter alia, attached to or forms a part of a force engaged in an operation against an enemy. There is no dispute that the Army personnel in Manipur are on active service. An 'enemy' is inclusively defined as armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to military law to act. The enemy must be armed. The Army Act also provides for offences in relation to the enemy which are punishable with death, offences not punishable with death and offences that are more severely punishable while on active service. The significance of these provisions is best understood in the background of the submission that under the AFSPA, the armed forces are entitled while maintaining public order in a disturbed area to cause the death of an enemy, that is a militant, terrorist, insurgent, underground element or secessionist who belongs to or is associated with a terrorist organization or terrorist gang or 917 A B c D E F G H SUPREME COURT REPORTS [2016] 4 S.C.R. unlawful association and is threatening or is likely to threaten the unity, integrity, security or sovereignty oflndia. For an offence committed by a person subject to the Army Act, the alleged offender may be tried by a Court Martial but the period of limitation for the trial of such an alleged offender is regulated by Section 122 of the Army Act. Section 125 and Section 126 of the Army Act are of considerable importance in this context and as far as this case is concerned. These Sections ought to be read in conjunction with Section 4 and Section 5 of the Cr.P.C. These Sections provide that when both a criminal court and a Court Martial have jurisdiction in respect of an offence, the first option would be with the Army to decide whether the accused person should be proceeded against in a criminal court or before a Court Martial. However, if the criminal court is of opinion that the proceedings should be instituted before itself, it may require the Army to send the alleged offender to the nearest Magistrate to be proceeded against or to postpone the proceedings pending a reference to the Central Government. In other words, in the event of a conflict of jurisdiction, whether an alleged offender should be tried by a criminal court constituted under the Cr.P.C. or by a Court Martial constituted under the Army Act, that conflict shall be referred to the Central Government for passing an appropriate order. The Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 provide, inter alia, that when a person subject to the Army Act·ois brought before a Magistrate and is charged with an offence also triable by a Court Martial, then such Magistrate shall not proceed to try that person or commit the case to the Court of Session unless he is moved thereto by a competent Army authority or the Magistraterecords his opinion in writing that he should so proceed without being so moved. In the latter event, the Magistrate shall give a written notice of fifteen days to the Commanding Officer of that person and shall until then effectively stay his hands. In the event a Magistrate concludes that a person subject to the Army Act has committed an offence triable by the Magistrate but the presence of such a person cannot be procured except through the competent Army authority, then the Magistrate "may by a written notice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice 918 A B c D E F G H EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA for being proceeded against according to law, or to stay the proceedings against such person before the Court Martial ....•. and to make a reference to the Central Government for determination as to the court before which proceedings should be instituted. [Paras 103 to 108) [958-C; 959-A-D; 960-A-E; 961- A-C)

#4. Is there a war-like situation in Manipur? 4.1. There is no doubt from the records of the case that Manipur has been and is facing a public order situation equivalent to an internal disturbance. The tragedy is that this situation has continued since 1958 - for almost 60 years. However, the situation in Manipur has never been one of a war or an external aggression or an armed rebellion that threatens the security of the country or a part thereof. That is not anybody's case at all nor has it even been suggested. [Paras 110, 111) [962-E, H; 963-A-B)

4.2. The animus to wage a war or any other similar activity is important before a non-conventional war or war-like situation can be said to exist. Every act of violence, even though it may be directed against the armed forces or public officials would not lead to an inference that a war is going on or that war-like conditions are prevailing. Similarly, sporadic but organized killings by militants and ambushes would not lead to a conclusion of the existence of a war or war-like conditions. Were such a blanket proposition accepted, it would reflect poorly on our armed forces that they are unable to effectively tackle a war-like situation for the last almost six decades. It would also reflect poorly on the Union oflndia that it is unable to resort to available constitutional provisions and measures to bring a war-like situation under control for almost six decades. In such a situation, our Constitution recognizes only an internal disturbance, which is what the situation in Manipur is and that ought to be dealt with by the civil administration with the services of the armed forces that are available in aid of the civil power. An internal disturbance is not equivalent to or akin to a war-like situation. There is no war or war-like situation in Manipur but only an internal disturbance, within the meaning of that expression in the Constitution - nothing more and nothing less. [Paras 115, 116) [966-A-E) State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 919 A B c D E F G H 920 SUPREME COURT REPORTS [20 I 6] 4 S.C.R. A B c D E 600 : 2005 (2) Suppl. SCR 79 - relied on. 5. Use of excessive force and retaliation 5.1. There is distinction between the right of self-defence or private defence and use of excessive force or retaliation. The right of self-defence or private defence is a right that can be ·exercised to defend oneself but not_to retaliate. The right of self defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket. Therefore, while a victim of aggression has a right of private defence or self-defence (recognized by Sections 96 to 106 of the IPC) if that victim exceeds the right of private defence or self defence by using excessive force or retaliatory measures, he then becomes an aggressor and commits a punishable offence. Unfortunately occasionally, use of excessive force or retaliation _leads to the death of the original aggressor. When the State uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or an extra-judicial execution or as this Court put it in *People's Union for Civil Liberties v. Union of India and another it is called "administrative liquidation". Society and the courts obviously cannot and do not accept such a death caused by the State since it is destructive of the rule of law and plainly unconstitutional. [Paras 118, 122] (966-H; 967-A; 968- D-F) F Rajesh Kumar v. Dharamvir (1997) 4 SCC 496 : 1997 (2) SCR1012; V. Subramani v. State of Tamil Nadu (2005) 10 SCC 358 : 2005 (2) SCR 536; Rohtash Kumar v. State of Haryana (2013) 14 SCC 290; Darshan Singh v. State of Punjab (2010) 2 SCC 333 : 2010 (1) SCR 642; *People '.s Union for Civil Liberties v. Union of India and another (1997) 3 SCC 433 : 1997 (1) SCR 923 - relied on. 5.2. The problem before the courts tends to become vexed G when the victims are alleged to be militants, insurgents or terrorists. In such cases, how does anyone (including the court) assess the degree of force required in a given situation and whether it was excessive and retaliatory or not? Scrutiny by the courts in such cases leads to complaints by the State of its having to fight militants, insurgents and terrorists with one hand tied H EXTRA JUDICIAL EXECUTION VICTIM FAMILIES · ASSOCIATION (EEVFAM) v. UNION OF INDIA behind its back. This is not a valid criticism since, and this is important, in such cases it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny. There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a'fly; one is an act of self-defence while the other is an act of retaliation. Causing the death of a person is certainly an offence, but whether there was a "reasonable connection" between the death and the official act or whether excessive force or retaliatory force was used in the act has to be determined at an appropriate stage. It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both. The decision of the Constitution Bench in Naga People's Movement of Human Rights requires that every death caused by the armed forces, including in the disturbed area of Manipur ''should be thoroughly enquired into" if there is a complaint or allegation of abuse or misuse of power. This is the r~quirement of a democracy and the requirement of preservation of the rule of law and the preservation of individual liberties. [Paras 123, 125, 126] [Para 135) [968-G; 969-A-B; 970-C-D, G; 974-G] Matajof{ Dobey v. HC. Bhari (1955) 2 SCR 925; Om Prakash v. State of Jharkhand (2012) 12 SCC 72 : 2012 (9) SCR 125 K. Satwant Singh v. State of Punjab (1960) 2 SCR 89; State of Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40 : 2004 (3) SCR 504; State of Maharashtra v. Saeed Sohail Sheikh (2012) 13 SCC 192 : 2012 (11) SCR 916 - relied on.

#6. Retaliation against an enemy 6.1. Before a. person can be branded as a militant or a terrorist or an insurgent, there must be the commission or some attempt or semblance of a violent overt act. A person carrying a weapon in a disturbed area in violation of a prohibition to that effect cannot be labeled a militant or terrorist or insurgent. Significantly, the word 'enemy' is used in conjunction with the word 'alien' in Article 22 of the Constitution. But the Army Act provides for a broader and more inclusive meaning. Nevertheless, it inherently connotes an overt or covert act of violence or air 921 A B c D E F G H 922 SUPREME COURT REPORTS [20 l 6] 4 S.C.R. A B c D E F G H imminent act of violence or such an attempt by any armed person. There can be little doubt that 'armed mutineers' and 'armed rebels' by definition deal in violence. Section 146 of the IPC explains rioting as use of force or violence by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly. Similarly, an act of piracy inherently involves violence. Therefore, merely because a person is carrying arms in a disturbed area, he does not ipso facto become an enemy. There has to be something much more to brand such a person as an enemy. That a person is not a mere law-breaker but an enemy can be determined only by a thorough enquiry. [Paras 139, 142) (976-B-C; 977-E-D; 978-E]

6.2. In cases such as the present, there is a greater duty of care and an equally greater necessity of a thorough enquiry since, the alleged 'enemy' in this case is a citizen of our country entitled to all fundamental rights including under Article 21 of the Constitution. Ordinarily our armed forces should not be used against our countrymen and women. If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are 'enemy' not only the rule of law but our democracy would be in grave danger. It is wrong to say that a person carrying weapons in violation of prohibitory orders in the disturbed area of Manipur is ipso facto an enemy or that the security forces in Manipur in such a case are dealing with an 'enemy' as defined in Section 3(x) of the Army Act. Each instance of an alleged extra-judicial killing of even such a person would have to be examined or thoroughly enquired into to ascertain and determine the facts. In the enquiry, it might turn out that the victim was in fact an enemy and an unprovoked aggressor and was killed in an exchange of fire. But the question for enquiry would still remain whether excessive or retaliatory force was used to kill that enemy. [Paras 143, 144) (978-F-G; 979-C-F) Indra Das v. State of Assam (2011) 3 SCC 380 : 2011 (4) SCR 289; Arup Bhuyan v. State of Assam (2011) 3 SCC 377 : 2011 (2) SCR 506; Union of India v. Tulsiram Patel (1985) 3 SCC 398 : 1985 (2) Suppl. SCR 131; Shivaji Atmaji Sawant v. State of Maharashtra (1986) 2 sec 112 : 1986 (1) SCR 300 - relied on. EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA

6.3. Killing an 'enemy' is not the only available solution and that is what the Geneva Conventions and the principles of international humanitarian law tell. Equally importantly, the instructions issued by the Army Headquarters under the caption: "List of Dos and Don'ts while acting under the Armed Forces (Special Powers) Act, 1958" read with "List of Dos and Don'ts while providing aid to civil authority" restrain the Army from using excessive force. Therefore, even while dealing with the 'enemy' the rule of law would apply and if there have been excesses beyond the call of duty, those members of the Manipur Police or the armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable to be proceeded against. [Para 149) [981-B C, F)

#7. The Ten Commandments are issued by the Chief of Army Staff to show how the security forces are expected to act in Manipur. It is quite clear from the various instructions issued (and which are binding on the armed forces) that minimum force is to be used even against terrorists, militants and insurgents. This is very much in tune with international .law even in times of war when the Geneva Conventions and the principles of international humanitarian law are applicable. There is absolutely no reason why an equally toned down response cannot be given by our armed forces in times of internal disturbances and why no. enquiry should be held if the response is alleged to be disproportionate. [Para 151) [982-C; 983-C-D)

#8. Army Act and the Cr.P.C.The law is very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Cr.P.C. To contend that this would have a deleterious· and demoralizing impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralizing, particularly in a constitutional democracy like ours. The result of the interplay between Section 4 and Section 5 of the Cr.P.C. and Sections 125 and 126 of the Army Act makes it quite clear that the decision to try a person who has committed an offence punishable under the Army Act 923 A B c D E F G H 924 SUPREME COURT REPORTS [2016] 4 S.C.R. and who is subject to the provisions of the Army Act does not always or necessarily lie only with the Army - the criminal court under the Cr.P.C. could also try the alleged offender in certain circumstances in accordance with the procedure laid down by the Cr.P.C. [Paras 163, 164) [989-G-H; 990-A-C) Balbir Singh v. State of Punjab (1995) 1 SCC 90 : 1994 (5) Suppl. SCR 422; Som Datt Datta v. Union of India (1969) 2 SCR 177; Ram S111arup i: Union India (1964) 5 SCR 931; General Officer Commanding, Rashtriya Rifles v. Central Bureau of Investigation (2012) 6 SCC 228 : 2012 (5) SCR 599 - relied on. 9. Issue of limitation The period of limitation provided under Section 122 of the Army Act commences from (a) the date of the offence (the commission of which is denied in the present case); (b) where the commission of the offence was not known to the competent authority, the first day on which the commission of such offence comes to the knowledge of the competent authority; (c) when it is not known who committed the offence, the first day on which the identity of the alleged offender is known to the competent authority. [Para 166) [990-E-F]

#10. Insofar as holding a Magisterial Enquiry is concerned, the NHRC has stated in their affidavits that the guidelines issued from time to time are not being followed in their true spirit. That apart, the NHRC has complained that the State Governments invariably take more than reasonable time to submit important documents such as the port-mortem report, inquest report and the ballistic expert report as well as the Magisterial Enquiry report. Therefore, the Magisterial Enquiry is not given its due importance but in any event since it is an administrative enquiry · (which is apparently conducted in a casual manner) and not a judicial enquiry, not much credence can be attached to the Magisterial Enquiry report. In this context, the NHRC has also complained about the poor quality of the Magisterial Enquiry reports received by it and it is pointed out that in some instances the family of the person killed is not examined nor any independent witness is examined by the Magistrate. That being the position, it is not possible to attach any importance to the A B c D E F G H EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA Magisterial Enquiry conducted at the behest of the State Government, even though it might have been conducted under Section 176 of the Cr.P.C. Therefore, even if the State Government decides to hold Magisterial Enquiries and take suitable action on the report given, it would not preclude any other inquiry or investigation into the allegations made. In situations of the kind that we are dealing with, there can be no substitute for a judicial inquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952. [Paras 171, 172] [991-E-H; 992-A-B] Union of India v. V.N Singh (2010) 5 SCC 579 : 2010 (4) SCR 454; J.S. Sekhon " Union of India (2010) 11 SCC 586 : 2010 (9) SCR 1025; Peoples Union for Civil Liberties v. Union of India (2004) 9 SCC 580 : 2003 (6) Suppl. SCR 860 - relied on. 11. Further steps: Of the 62 cases that the petitioners have documented, their representative and the Amicus will prepare a simple tabular statement indicating whether in each case a judicial enquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952 has been held and the result of the inquiry and whether any First Information Report or complaint or petition has been filed by the next of kin of the deceased. The NHRC is requested to render assistance to the Amicus in this regard. Since a Magisterial Enquiry is not a judicial inquiry and, it is not possible to attach any importance to Magisterial Enquiries, the tabular statement will not include Magisterial Enquiries. The representative of the petitioners and the Amicus will revisit the remaining cases (1528 minus 62) and carry out an identical exercise. This exercise is required to be conducted for eliminating those cases in which there is no information about the identity of the victim or the place of occurrence or any other relevant detail and then present an accurate and faithful chart of cases in a simple tabular form. The grievance of the NHRC that it has become a toothless tiger shall be considered, after hearing the Union of India and the NHRC on this important issue. The nature of the guidelines issued by the NHRC - whether they are binding or only advisory shall also be considered. [Paras 175, 176] [993-E-H; 994-A] Ex-Havildar Ratan Singh v. Union of India 1992 Supp 925 A B c D E F G H 926 SUPREME COURT REPORTS [2016] 4 S.C.R.